As filed with the Securities and Exchange Commission on August 8,
1995
Registration No. 33-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_________________________________
FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
_________________________________
HITOX CORPORATION OF AMERICA
(Exact Name of Registrant as Specified in its Charter)
Delaware 74-2081929
(State or other jurisdiction of
(I.R.S. Employer
incorporation or organization)
Identification No.)
Furman Plaza Building
418 Peoples Street
P. O. Box 2544
Corpus Christi, Texas
78403-2544
(Address of Principal Executive Offices)
(Zip Code)
___________________________________
1990 INCENTIVE PLAN
FOR
HITOX CORPORATION OF AMERICA
___________________________________
(Full Title of the Plan)
___________________________________
Mr. Thomas A. Landshof, President Copies of Communications:
Hitox Corporation of America L. Steven Leshin, Esq.
Furman Plaza Building Jenkens & Gilchrist,
418 Peoples Street a Professional Corporation
P. O. Box 2544 Suite 3200
Corpus Christi, Texas 78403-2544 Dallas, Texas 75202-2799
(512) 882-5175
(Name, Address and Telephone
Number, including area code
of Agent for Service)
_________________________________
CALCULATION OF REGISTRATION FEE
<PAGE>
<TABLE>
<CAPTION>
Title of Proposed maximum Proposed maximum
securities to be Amount to be offering price per aggregate Amount of
registered registered share(2)(3) offering price (2)(3) registration fee
<S> <C> <C> <C> <C>
Common Stock,
par value
$.25
per share 450,000 $4.25 $1,643,225 $567
</TABLE>
(1) Pursuant to Rule 416, an indeterminate number of
additional shares of Common Stock of the Company issuable
pursuant to the exercise of options and/or awards granted or to
be granted under the plan in order to prevent dilution resulting
from any future stock split, stock dividend or similar
transaction are also being registered hereunder.
(2) Estimated solely for the purpose of calculating the
registration fee.
(3) Calculated pursuant to Rule 457(c) and (h).
Accordingly, the price per share of common stock offered
hereunder pursuant to the Plan is based on (i) 95,800 shares of
common stock reserved for issuance under the Plan, but not
subject to outstanding stock options, at a price per share of
$4.25, which is the average of the highest and lowest price per
share of the Common Stock on the National Association of
Securities Dealers, Inc. Automated Quotation System Small-Cap
Market on August 2, 1995, and (ii) the following shares of common
stock reserved for issuance under the Plan and subject to options
already granted thereunder at the following exercise prices:
Number of Shares
of Common Stock Exercise Price
Reserved for Issuance Per Share
150,000 $2.625
204,200 $4.125
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
Item 1. Plan Information*
Item 2. Registrant Information and Employee Plan Annual
Information*
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Hitox Corporation of America (the "Corporation") hereby
incorporates by reference its registration statement on Form S-8
previously filed with the Securities and Exchange Commission
(Registration No. 33-39755), which related to the 1990 Incentive
Plan for Hitox Corporation of America.
*Information required by Part I to be contained in the
Section 10(a) prospectus is omitted from the Registration Statement
in accordance with Rule 428 under the Securities Act of 1933 and the
Note to Part I of Form S-8.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
as amended, the registrant certifies that it has reasonable
grounds to believe that it meets all the requirements for filing
on Form S-8 and has duly caused this registration statement to be
signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Corpus Christi, Texas, on August 8,
1995:
HITOX CORPORATION OF AMERICA
By: /s/ Thomas A. Landshof
Thomas A. Landshof
President and Chief Executive Officer
<PAGE>
Exhibit
No. Description of Exhibit
4.1 Certificate of Incorporation of the Corporation, as
amended [1]
4.2 Bylaws of the Corporation, as amended [1]
4.3 Amendment to the Bylaws of the Corporation [1]
4.4 1990 Incentive Plan for Hitox Corporation of America
[2]
4.5 Form of Common Stock Certificate [1]
4.6 Form of Convertible Subordinated Debenture of the
Corporation dated June 15, 1992, and related purchase
agreements [3]
4.7 Form of First Amendment to the Note Purchase Agreement
covering the Convertible Subordinated Debenture of the
Company, dated September 30, 1994 [4]
4.8 Form of Second Amendment to the Note Purchase Agreement
covering the Convertible Subordinated Debenture of the
Company, dated February 28, 1995[5].
4.9 Form of Incentive Stock Option Agreement
4.10 Form of Nonqualified Stock Option Agreement
5.1 Opinion of Jenkens & Gilchrist, P.C.
24.1 Consent of Jenkens & Gilchrist, P.C. (included in their
opinion filed as Exhibit 5.1)
24.2 Consent of Deloitte & Touche
25.1 Power of Attorney (see signature page of this
Registration Statement)
[1] Included as an exhibit in the Corporation's Registration
Statement on Form S-1, Registration No. 33-25354, and
incorporated herein by reference.
[2] Included as an Exhibit in the Corporation's Registration
Statement on Form S-8, Registration No. 33-39755, and
incorporated herein by reference.
[3] Included as an Exhibit in the Corporation's filing on Form
8-K dated June 15, 1992, and incorporated herein by
reference.
<PAGE>
[4] Included as an Exhibit in the Corporation's filing on Form
10-KSB for the fiscal year ended December 31, 1994 and
incorporated herein by reference.
[5] Included as an Exhibit in the Corporation's filing on Form
10-QSB for the quarter ended March 31, 1995.
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each individual whose
signature appears below hereby constitutes and appoints Thomas A.
Landshof and Craig Schkade and each of them, each with full power
to act without the other, his true and lawful attorneys-in-fact
and agents, each with full power of substitution and
resubstitution for him and in his name, place and stead, in any
and all capacities, to sign any or all amendments to this
Registration Statement, and to file the same with all exhibits
thereto and other documents in connection therewith, with the
Commission, granting unto each of said attorneys-in-fact and
agents full power and authority to do and perform each and every
act and thing requisite and necessary to be done in connection
therewith, as fully to all intents and purposes as he might or
could do in person hereby ratifying and confirming that each of
said attorneys-in-fact and agents or his substitutes may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons
in the capacities and on the dates included:
Signature Capacity Date
/s/ Thomas A. Landshof President and Chief August 8, 1995
Thomas A. Landshof Executive Officer
/s/ Craig Schkade Chief Financial Officer August 8, 1995
Craig Schkade and Treasurer (Principal
Financial and Accounting Officer)
/s/ William B. Hayes Chairman of the Board August 8, 1995
William B. Hayes
/s/ Robert J. Cresci Director August 8, 1995
Robert J. Cresci
/s/ Kevin S. Moore Director August 8, 1995
Kevin S. Moore
/s/ Michael A. Nicolais Director August 8, 1995
Michael A. Nicolais
/s/ Bernard A. Paulson Director August 8, 1995
Bernard A. Paulson
<PAGE>
August 8, 1995
Hitox Corporation of America
Furman Plaza Building
418 Peoples Street
P.O. Box 2544
Corpus Christi, Texas 78403
Re: Registration Statement on Form S-8
Gentlemen:
We have acted as counsel to Hitox Corporation of America, a
Delaware corporation (the "Company"), in connection with the
preparation of the Registration Statement on Form S-8 (the
"Registration Statement") to be filed with the Securities and
Exchange Commission on August 8, 1995, under the Securities Act
of 1933, as amended (the "Securities Act"), relating to 450,000
shares of the $.25 par value common stock (the "Common Stock") of
the Company that may be issued under the 1990 Incentive Plan for
Hitox Corporation of America, as amended (the "Plan").
You have requested the opinion of this firm with respect to
certain legal aspects of the proposed offering. In connection
therewith, we have examined and relied upon the original, or
copies identified to our satisfaction, of (1) the Articles of
Incorporation and the Bylaws of the Company, as amended; (2)
minutes and records of the corporate proceedings of the Company
with respect to the establishment of the Plan, the reservation of
450,000 additional shares of Common Stock to be issued under the
Plan and to which the Registration Statement relates, the
issuance of shares of Common Stock pursuant to the Plan and
related matters; (3) the Registration Statement and exhibits
thereto, including the Plan; and (4) such other documents and
instruments as we have deemed necessary for the expression of the
opinions herein contained. In making the foregoing examinations,
we have assumed the genuineness of all signatures and the
authenticity of all documents submitted to us as originals, and
the conformity to original documents of all documents submitted
to us as certified or photostatic copies. As to various
questions of fact material to this opinion, and as to the content
and form of the Articles of Incorporation, the bylaws, minutes,
records, resolutions and other documents or writings of the
Company, we have relied, to the extent we deem reasonably
appropriate, upon representations or certificates of officers or
directors of the Company and upon documents, records and
<PAGE>
Hitox Corporation of America
August 8, 1995
Page 2
instruments furnished to us by the Company, without independent
check or verification of their accuracy.
Based upon our examination and consideration of, and
reliance on, the documents and other matters described above, we
are of the opinion that the Company presently has available at
least 450,000 shares of authorized but unissued shares of Common
Stock and/or treasury shares of Common Stock from which the
450,000 shares of Common Stock proposed to be offered or to be
sold pursuant to the Plan may be issued. Assuming that (i) the
outstanding incentive stock options and nonstatutory stock
options ("Options") were duly granted, and the Options and other
awards to be granted under the Plan in the future are duly
granted in accordance with the terms of the Plan and the shares
of Common Stock to be issued in the future are duly issued in
accordance with the terms of the Plan, (ii) the Company maintains
an adequate number of authorized but unissued shares and/or
treasury shares of Common Stock available for issuance under the
Plan, and (iii) the consideration for shares of Common Stock
issued pursuant to the Plan and pursuant to such Options and
other awards is actually received by the Company as provided in
the Plan and exceeds the par value of such shares, then the
shares of Common Stock issued in accordance with the terms of the
Plan and issued pursuant to the exercise of the Options and other
awards granted under and in accordance with the terms of the Plan
will be duly and validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as an
exhibit to the Registration Statement and to references to our
firm included in or made a part of the Registration Statement.
In giving this consent, we do not admit that we come within the
category of person whose consent is required under Section 7 of
the Securities Act or the Rules and Regulations of the Securities
and Exchange Commission thereunder.
Very truly yours,
JENKENS & GILCHRIST,
a Professional Corporation
By: /s/ L. Steven Leshin
L. Steven Leshin
LSL/GC/sh
<PAGE>
INDEPENDENT AUDITOR'S CONSENT
We consent to the incorporation by reference in this Registration
Statement of Hitox Corporation of America on Form S-8 of the
report of Deloitte & Touche LLP dated March 15, 1995, appearing
in the Annual Report on Form 10-KSB of Hitox Corporation of
America for the year ended December 31, 1994.
DELOITTE & TOUCHE LLP
San Antonio, Texas
July 21, 1995
<PAGE>
INCENTIVE STOCK OPTION
FOR
1. Grant of Option. As of the Date of Grant the Company
hereby grants to Optionee this Incentive Stock Option to acquire
( ) Shares pursuant to this Option,
WHICH OPTION SHALL BE SUBJECT TO, AND HEREBY INCORPORATES BY
REFERENCE, ALL OF THE PROVISIONS OF THE PLAN; provided, however,
that where the actual written provisions of this Option differ
from the provisions of the Plan, such provisions of this Option
shall control.
2. Definitions. As used herein, the following terms shall
have the meaning indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Cause" shall mean the Optionee's willful misconduct or
gross negligence, as reasonably determined by the Committee in
its sole discretion.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
now or hereafter amended.
(d) "Committee" shall mean the committee, if any, appointed
by the Board pursuant to Section 20 of the Plan.
(e) "Company" shall mean Hitox Corporation of America.
(f) "Date of Grant" shall mean .
(g) "Disability" shall mean an Optionee's present
incapacity resulting from an injury or illness (either mental or
physical) which, in the reasonable opinion of the Committee based
on such medical evidence as it deems necessary, will result in
death or can be expected to continue for a period of at least
twelve (12) months and will prevent the Optionee from performing
the normal services required of the Optionee by the Company,
provided, however, that such disability did not result, in whole
or in part: (i) from chronic alcoholism; (ii) from addiction to
narcotics; (ii) from a felonious undertaking; or (iv) from an
intentional self-inflicted wound.
(h) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(i) "Fair Market Value" of a Share on a particular date
shall be the closing price of Stock on such date (or, if the date
is not a business day, then on the next preceding business day),
which shall be (i) if the Stock is listed or admitted for trading
<PAGE>
on any United States national securities exchange, the last
reported sale price of Stock on such exchange as reported in any
newspaper of general circulation, (ii) if the Stock is quoted on
NASDAQ or any similar system of automated dissemination of
quotations of securities prices in common use, the mean between
the closing high bid and low asked quotations for such day of the
Stock on such system or (iii) if neither clause (i) nor (ii) is
applicable, a value determined by any fair and reasonable means
prescribed by the Board.
(k) "Option" (when capitalized) shall mean this Option.
(l) "Optionee" shall mean
, and any person who succeeds to the rights of such person
by reason of the death of such person.
(m) "Option Price" shall mean ($
) per Share.
(n) "Plan" shall mean the 1990 Incentive Plan For Hitox
Corporation of America.
(o) "Share(s)" shall mean a share or shares of the common
stock, par value twenty-five cents ($0.25) per share, of the
Company, and the Shares subject to this Option shall be adjusted
as provided in Section 16 of the Plan where applicable.
3. Conditions for Grant of Options. (a) The grant of
this Option does not confer upon Optionee any right to remain in
the employ of the Company.
(b) The Committee in its sole discretion shall determine in
each case whether periods of military or government service shall
constitute a continuation of employment for the purposes of this
Option.
4. Description of Option. This Option is an Incentive
Stock Option.
5. Vesting Schedule. [Alternate: This Option is vested
and nonforfeitable prior to its termination date.]The Shares
which may be acquired through the exercise of this Option are
limited to those discribed in the vesting schedule below opposite
the number of full which have elapsed between the Date
of Grant and the date of referance, and all referances herein to
the exercisability of the Option, unless the context requires a
different interpetation, shall refer to the portion of the Option
which is exercisable at the time of referance in accordance with
the vesting schedule below:
<PAGE>
Subsequent to Date of Grant Percentage of Original Total
Shares
Which May Be Acquired
* %
* %
* %
* %
6. Exercise of Options. (a) This Option may be exercised
at any time and from time to time during the term of such Option,
in whole or in part.
(b) This Option may be exercised (i) during the Optionee's
lifetime, solely by the Optionee, or (ii) after Optionee's death,
by the personal representative of the Optionee's estate or the
person or persons entitled thereto under his will or under the
laws of descent and distribution.
(c) This Option shall be deemed exercised when (i) the
Company has received written notice of such exercise delivered to
the Company, (ii) full payment of the aggregate Option Price of
the Shares as to which the Option is exercised has been tendered
to the Company, and (iii) arrangements that are satisfactory to
the Board in its sole discretion have been made for the
Optionee's payment to the Company of the amount, if any, that the
Company determines to be necessary for the Company to withhold in
accordance with the applicable federal or state income tax
withholding requirements.
(d) The Option Price of any Shares purchased shall be paid
solely in cash, by certified or cashier's check, by money order,
by personal check (if approved by the Board), [Alternate - or, at
the option of the Optionee, in Shares owned by such Optionee,] or
by a combination of the above. [Alternate :For purposes of
determining the amount, if any, of the Option Price satisfied by
payment in Shares, such Shares shall be valued at its Fair Market
Value, as established by the Committee in its sole discretion, on
the date of exercise. Any Shares tendered in satisfaction of all
or a portion of the Option Price shall be appropriately endorsed
for transfer and assignment to the Company.
(e) The Optionee shall not be, nor have any of the rights
or privileges of, a shareholder of the Company with respect to
any Shares purchasable upon the exercise of any part of this
Option unless and until certificates representing such Shares
shall have been issued by the Company to the Optionee.
7. Termination of Option Period. (a) The unexercised
portion of an Option shall automatically and without notice
<PAGE>
terminate and become null and void at the time of the earliest to
occur of the following:
(i) [Alternate - thirty (30)] days after the date that
Optionee ceases to be employed by the Company regardless of
the reason therefor, other than a cessation by reason of
death, Disability or for Cause;
(ii) one (1) year after the date on which the Optionee
ceases to be employed by the Company by reason of
Disability;
(iii) (y) one (1) year after the date that Optionee
ceases to be employed by the Company by reason of death, or
(z) the later of (I) the date provided in whichever of
Subsection 7(a)(i) or 7(a)(ii), if any, apply on the date of
death, and (II) six (6) months after the date on which such
person shall die if that shall occur during whichever of the
periods described in Subsection 7(a)(i) or 7(a)(ii), if any,
apply on the date of death;
(iv) the date that Optionee ceases to be employed by
the Company, if such cessation is for Cause; and
(v) the ( th) anniversary of the Date
of Grant;
(b) The Committee may, by giving written notice
("Cancellation Notice"), cancel, effective upon the date of the
consummation of any of the transactions described in Subsection
15(a) of the Plan, all or any portion of such Option which
remains unexercised on such date. Such Cancellation Notice shall
be given a reasonable period of time (but not less than 15 days)
prior to the proposed date of such cancellation, and may be given
either before or after shareholder approval of such corporate
transaction.
8. Transferability of Options. This Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution and that so long as a Optionee lives,
only such Optionee or his guardian or legal representative shall
have the rights set forth in such Option.
9. Issuance of Shares. Optionee shall not be the owner of
Shares subject to this Option unless and until certificates
representing such Shares shall have been issued and delivered to
Optionee. As a condition of any issuance of Shares, the
Committee may obtain such agreements or undertakings, if any, as
the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not
limited to, the following:
(i) a representation, warranty or agreement by
Optionee that he is acquiring the Shares to be issued to
<PAGE>
him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) a representation, warranty or agreement to be
bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the
provisions of any securities law deemed by the Committee to
be applicable to the issuance of the Shares and are endorsed
upon the Share certificates.
Notwithstanding any provision hereof to the contrary, no Shares
shall be required to be issued with respect to this Option unless
counsel for the Company shall be reasonably satisfied that such
issuance will be in compliance with applicable Federal or state
securities and other applicable laws.
10. Notice of Disqualifying Disposition. In order to
enable the Company to avail itself of any income tax deduction to
which it may be entitled, the Optionee shall notify the Company
of his intent to dispose of any of the Shares purchased pursuant
to this Incentive Stock Option within two (2) years from the Date
of Grant of the Incentive Stock Option and one (1) year from the
date of exercise of the Incentive Stock Option, and promptly
after such disposition the Optionee shall notify the Company of
the number of Shares disposed of, the dates of acquisition and
disposition of such Shares, and the consideration, if any,
received on such disposition. Nothing in this Paragraph *,
however, shall give the Optionee any right to dispose of Shares
that is inconsistent with any provision of the Plan or any
Paragraph of this Agreement. If in connection with any such
disposition the Company becomes liable for withholding taxes and
has no amounts owing the Optionee with which to discharge its
withholding obligation, the Optionee shall provide the Company
with the amount needed to discharge the Company's withholding
obligation and shall indemnify the Company against any penalties
it may incur through its inability to apply amounts owing the
Optionee in discharge of its withholding obligation. Nothing in
this Paragraph shall give the Optionee any right to dispose of
Shares in a manner that is inconsistent with any provision of
this Agreement, the Plan, or any stock transfer restriction
agreement entered into by the Optionee.
11. Tax Withholding. Upon the exercise of an Option, and
before the transfer of Shares, the Optionee must pay to the
Company, in cash or in Shares (including, but not limited to, the
reservation to the Company of the requisite number of Shares
otherwise payable to such person with respect to such Option) the
amount which the Company reasonably determines to be necessary in
order for the Company to comply with applicable federal or state
tax withholding requirements, including applicable employment
taxes; provided, further, that the Committee may require that
such payment be made in cash.
<PAGE>
12. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally
delivered or sent by mail. Any notice required or permitted to
be delivered hereunder shall be deemed to be delivered on the
date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited
in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the
address which such person has theretofore specified by written
notice delivered in accordance herewith. The Company or Optionee
may change, at any time and from time to time, by written notice
to the other, the address previously specified for receiving
notices. Until changed in accordance herewith, the Company and
the Optionee specify their respective addresses as set forth
below:
Company: Hitox Corporation of America
Attention: President
418 Peoples Street
Corpus Christi, Tx. 78403-2544
Optionee: _________________________
_________________________
_________________________
13. Interpretation. (a) If any provision of the Option is
held invalid for any reason, such holding shall not affect the
remaining provisions hereof, but instead the Option shall be con-
strued and enforced as if such provision had never been included
in the Option.
(b) THIS OPTION SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS.
(c) Headings contained in this Option are for convenience
only and shall in no manner be construed as part of this Option.
(d) Any reference to the masculine, feminine, or neuter
gender shall be a reference to such other gender as is
appropriate.
14. Amendment. The Board, or the Committee (subject to the
prior written authorization of the Board), may from time to time
amend this Option in any regard, except as such amendment is
expressly limited under the Plan.
HITOX CORPORATION OF
AMERICA
<PAGE>
INCENTIVE STOCK OPTION
FOR
1. Grant of Option. As of the Date of Grant the Company
hereby grants to Optionee this Incentive Stock Option to acquire
( ) Shares pursuant to this Option,
WHICH OPTION SHALL BE SUBJECT TO, AND HEREBY INCORPORATES BY
REFERENCE, ALL OF THE PROVISIONS OF THE PLAN; provided, however,
that where the actual written provisions of this Option differ
from the provisions of the Plan, such provisions of this Option
shall control.
2. Definitions. As used herein, the following terms shall
have the meaning indicated:
(a) "Board" shall mean the Board of Directors of the
Company.
(b) "Cause" shall mean the Optionee's willful misconduct or
gross negligence, as reasonably determined by the Committee in
its sole discretion.
(c) "Code" shall mean the Internal Revenue Code of 1986, as
now or hereafter amended.
(d) "Committee" shall mean the committee, if any, appointed
by the Board pursuant to Section 20 of the Plan.
(e) "Company" shall mean Hitox Corporation of America.
(f) "Date of Grant" shall mean .
(g) "Disability" shall mean an Optionee's present
incapacity resulting from an injury or illness (either mental or
physical) which, in the reasonable opinion of the Committee based
on such medical evidence as it deems necessary, will result in
death or can be expected to continue for a period of at least
twelve (12) months and will prevent the Optionee from performing
the normal services required of the Optionee by the Company,
provided, however, that such disability did not result, in whole
or in part: (i) from chronic alcoholism; (ii) from addiction to
narcotics; (ii) from a felonious undertaking; or (iv) from an
intentional self-inflicted wound.
(h) "Exchange Act" shall mean the Securities Exchange Act
of 1934, as amended (the "Exchange Act").
(i) "Fair Market Value" of a Share on a particular date
shall be the closing price of Stock on such date (or, if the date
is not a business day, then on the next preceding business day),
which shall be (i) if the Stock is listed or admitted for trading
<PAGE>
on any United States national securities exchange, the last
reported sale price of Stock on such exchange as reported in any
newspaper of general circulation, (ii) if the Stock is quoted on
NASDAQ or any similar system of automated dissemination of
quotations of securities prices in common use, the mean between
the closing high bid and low asked quotations for such day of the
Stock on such system or (iii) if neither clause (i) nor (ii) is
applicable, a value determined by any fair and reasonable means
prescribed by the Board.
(k) "Option" (when capitalized) shall mean this Option.
(l) "Optionee" shall mean
, and any person who succeeds to the rights of such person
by reason of the death of such person.
(m) "Option Price" shall mean ($
) per Share.
(n) "Plan" shall mean the 1990 Incentive Plan For Hitox
Corporation of America.
(o) "Share(s)" shall mean a share or shares of the common
stock, par value twenty-five cents ($0.25) per share, of the
Company, and the Shares subject to this Option shall be adjusted
as provided in Section 16 of the Plan where applicable.
3. Conditions for Grant of Options. (a) The grant of
this Option does not confer upon Optionee any right to remain in
the employ of the Company.
(b) The Committee in its sole discretion shall determine in
each case whether periods of military or government service shall
constitute a continuation of employment for the purposes of this
Option.
4. Description of Option. This Option is an Incentive
Stock Option.
5. Vesting Schedule. [Alternate: This Option is vested
and nonforfeitable prior to its termination date.]The Shares
which may be acquired through the exercise of this Option are
limited to those discribed in the vesting schedule below opposite
the number of full which have elapsed between the Date
of Grant and the date of referance, and all referances herein to
the exercisability of the Option, unless the context requires a
different interpetation, shall refer to the portion of the Option
which is exercisable at the time of referance in accordance with
the vesting schedule below:
<PAGE>
Number of full ___________
Subsequent to Date of Grant Percentage of Original Total
Shares Which May Be Acquired
* %
* %
* %
* %
6. Exercise of Options. (a) This Option may be exercised
at any time and from time to time during the term of such Option,
in whole or in part.
(b) This Option may be exercised (i) during the Optionee's
lifetime, solely by the Optionee, or (ii) after Optionee's death,
by the personal representative of the Optionee's estate or the
person or persons entitled thereto under his will or under the
laws of descent and distribution.
(c) This Option shall be deemed exercised when (i) the
Company has received written notice of such exercise delivered to
the Company, (ii) full payment of the aggregate Option Price of
the Shares as to which the Option is exercised has been tendered
to the Company, and (iii) arrangements that are satisfactory to
the Board in its sole discretion have been made for the
Optionee's payment to the Company of the amount, if any, that the
Company determines to be necessary for the Company to withhold in
accordance with the applicable federal or state income tax
withholding requirements.
(d) The Option Price of any Shares purchased shall be paid
solely in cash, by certified or cashier's check, by money order,
by personal check (if approved by the Board), [Alternate - or, at
the option of the Optionee, in Shares owned by such Optionee,] or
by a combination of the above. [Alternate :For purposes of
determining the amount, if any, of the Option Price satisfied by
payment in Shares, such Shares shall be valued at its Fair Market
Value, as established by the Committee in its sole discretion, on
the date of exercise. Any Shares tendered in satisfaction of all
or a portion of the Option Price shall be appropriately endorsed
for transfer and assignment to the Company.
(e) The Optionee shall not be, nor have any of the rights
or privileges of, a shareholder of the Company with respect to
any Shares purchasable upon the exercise of any part of this
Option unless and until certificates representing such Shares
shall have been issued by the Company to the Optionee.
7. Termination of Option Period. (a) The unexercised
portion of an Option shall automatically and without notice
<PAGE>
terminate and become null and void at the time of the earliest to
occur of the following:
(i) [Alternate - thirty (30)] days after the date that
Optionee ceases to be employed by the Company regardless of
the reason therefor, other than a cessation by reason of
death, Disability or for Cause;
(ii) one (1) year after the date on which the Optionee
ceases to be employed by the Company by reason of
Disability;
(iii) (y) one (1) year after the date that Optionee
ceases to be employed by the Company by reason of death, or
(z) the later of (I) the date provided in whichever of
Subsection 7(a)(i) or 7(a)(ii), if any, apply on the date of
death, and (II) six (6) months after the date on which such
person shall die if that shall occur during whichever of the
periods described in Subsection 7(a)(i) or 7(a)(ii), if any,
apply on the date of death;
(iv) the date that Optionee ceases to be employed by
the Company, if such cessation is for Cause; and
(v) the ( th) anniversary of the Date
of Grant;
(b) The Committee may, by giving written notice
("Cancellation Notice"), cancel, effective upon the date of the
consummation of any of the transactions described in Subsection
15(a) of the Plan, all or any portion of such Option which
remains unexercised on such date. Such Cancellation Notice shall
be given a reasonable period of time (but not less than 15 days)
prior to the proposed date of such cancellation, and may be given
either before or after shareholder approval of such corporate
transaction.
8. Transferability of Options. This Option is not
transferable by the Optionee otherwise than by will or the laws
of descent and distribution and that so long as a Optionee lives,
only such Optionee or his guardian or legal representative shall
have the rights set forth in such Option.
9. Issuance of Shares. Optionee shall not be the owner of
Shares subject to this Option unless and until certificates
representing such Shares shall have been issued and delivered to
Optionee. As a condition of any issuance of Shares, the
Committee may obtain such agreements or undertakings, if any, as
the Committee may deem necessary or advisable to assure
compliance with any such law or regulation including, but not
limited to, the following:
(i) a representation, warranty or agreement by
Optionee that he is acquiring the Shares to be issued to
<PAGE>
him for investment and not with a view to, or for sale in
connection with, the distribution of any such Shares; and
(ii) a representation, warranty or agreement to be
bound by any legends that are, in the opinion of the
Committee, necessary or appropriate to comply with the
provisions of any securities law deemed by the Committee to
be applicable to the issuance of the Shares and are endorsed
upon the Share certificates.
Notwithstanding any provision hereof to the contrary, no Shares
shall be required to be issued with respect to this Option unless
counsel for the Company shall be reasonably satisfied that such
issuance will be in compliance with applicable Federal or state
securities and other applicable laws.
10. Notice of Disqualifying Disposition. In order to
enable the Company to avail itself of any income tax deduction to
which it may be entitled, the Optionee shall notify the Company
of his intent to dispose of any of the Shares purchased pursuant
to this Incentive Stock Option within two (2) years from the Date
of Grant of the Incentive Stock Option and one (1) year from the
date of exercise of the Incentive Stock Option, and promptly
after such disposition the Optionee shall notify the Company of
the number of Shares disposed of, the dates of acquisition and
disposition of such Shares, and the consideration, if any,
received on such disposition. Nothing in this Paragraph *,
however, shall give the Optionee any right to dispose of Shares
that is inconsistent with any provision of the Plan or any
Paragraph of this Agreement. If in connection with any such
disposition the Company becomes liable for withholding taxes and
has no amounts owing the Optionee with which to discharge its
withholding obligation, the Optionee shall provide the Company
with the amount needed to discharge the Company's withholding
obligation and shall indemnify the Company against any penalties
it may incur through its inability to apply amounts owing the
Optionee in discharge of its withholding obligation. Nothing in
this Paragraph shall give the Optionee any right to dispose of
Shares in a manner that is inconsistent with any provision of
this Agreement, the Plan, or any stock transfer restriction
agreement entered into by the Optionee.
11. Tax Withholding. Upon the exercise of an Option, and
before the transfer of Shares, the Optionee must pay to the
Company, in cash or in Shares (including, but not limited to, the
reservation to the Company of the requisite number of Shares
otherwise payable to such person with respect to such Option) the
amount which the Company reasonably determines to be necessary in
order for the Company to comply with applicable federal or state
tax withholding requirements, including applicable employment
taxes; provided, further, that the Committee may require that
such payment be made in cash.
<PAGE>
12. Notice. Whenever any notice is required or permitted
hereunder, such notice must be in writing and personally
delivered or sent by mail. Any notice required or permitted to
be delivered hereunder shall be deemed to be delivered on the
date which it is personally delivered, or, whether actually
received or not, on the third business day after it is deposited
in the United States mail, certified or registered, postage
prepaid, addressed to the person who is to receive it at the
address which such person has theretofore specified by written
notice delivered in accordance herewith. The Company or Optionee
may change, at any time and from time to time, by written notice
to the other, the address previously specified for receiving
notices. Until changed in accordance herewith, the Company and
the Optionee specify their respective addresses as set forth
below:
Company: Hitox Corporation of America
Attention: President
418 Peoples Street
Corpus Christi, Tx. 78403-2544
Optionee: _________________________
_________________________
_________________________
13. Interpretation. (a) If any provision of the Option is
held invalid for any reason, such holding shall not affect the
remaining provisions hereof, but instead the Option shall be con-
strued and enforced as if such provision had never been included
in the Option.
(b) THIS OPTION SHALL BE GOVERNED BY THE LAWS OF THE STATE
OF TEXAS.
(c) Headings contained in this Option are for convenience
only and shall in no manner be construed as part of this Option.
(d) Any reference to the masculine, feminine, or neuter
gender shall be a reference to such other gender as is
appropriate.
14. Amendment. The Board, or the Committee (subject to the
prior written authorization of the Board), may from time to time
amend this Option in any regard, except as such amendment is
expressly limited under the Plan.
HITOX CORPORATION OF
AMERICA
<PAGE>
